A Last Hurrah - David Green CB QC’s Final Appearance Before the Justice Committee

A Last Hurrah - David Green CB QC’s Final Appearance Before the Justice Committee

On 13 December 2017, the Justice Committee held an evidence
session on the work of the Serious Fraud Office (“SFO”). In his last scheduled appearance before the Justice
Committee, David Green CB QC—Director of the SFO—presented evidence on a number
of issues, including the recent proposal for the National Economic Crime Centre
(“NECC”), staffing and funding,
deferred prosecution agreements (“DPAs”)
and the impact of Brexit on the SFO’s work with its international partners.

Naturally, Green was positive about the work of the SFO
during his tenure as Director, and its ability to continue to fund
investigations in future. He acknowledged that there remains uncertainty about
the future relationship between the NECC and the SFO, as well as the impact of
Brexit on the operations of the SFO. It was clear Green is concerned about
international cooperation post Brexit, noting that equivalent structures for
ensuring international cooperation need to be in place before the United
Kingdom leaves the European Union.

Proposal for the
National Economic Crime Centre

Green was asked by the Justice Committee to opine on the
Government’s recent proposal to set up the NECC, which will have a power to
direct the SFO to carry out investigations. In Green’s view, it was unclear
what this change would add to the existing level of governance over the SFO.
Green pointed out that there already existed a number of similar powers, such
as the power of the Director General of the NCA to give directions to the SFO
to provide specified assistance. Green welcomed any change that would increase
cooperation amongst governmental agencies but made clear that he viewed it as
important that the SFO remain an independent prosecutorial body.

Funding and staffing

Green was adamant throughout the session that he had never
turned down a case on financial grounds. He reminded the Committee that his
predecessor had declined to investigate LIBOR, but that he (Green) had
re-opened the investigation despite budget constraints and had the Treasury
agree to provide blockbuster funding.

On the subject of blockbuster funding, he noted that the SFO
is currently in discussion with HM Treasury to increase the core budget. He
expressed a preference for “less reliance
on blockbuster funding and a greater core budget”, noting that it would “look absurd if we reached a point where
blockbuster [funding] is greater than the core budget”.

Throughout the session, Green also commented on the
difficulties facing the SFO with respect to the retention of skillful lawyers,
investigators and other staff. Despite “the
attraction” that the SFO was now “a
recognisedly useful addition” to the CVs of such individuals, Green
acknowledged that the SFO had difficulty retaining those members of staff due
to its inability to pay competitive wages.

Deferred prosecution
agreements

When asked about DPAs, Green said they provide “a transparent offer in what a company can
expect if they self-report and cooperate with the SFO”. According to Green,
DPAs also provide “a mechanism by which a
company can account to a court in an open and transparent way for criminal
conduct, without incurring a criminal conviction and the possibility of
debarment from competing for public contracts”.

Green dismissed suggestions that DPAs were a way in which
companies could avoid criminal charges, noting instead that a DPA would only be
entered into if a judge was satisfied that there was “a genuine commitment on the part of the company to ensure compliance
and proper corporate behavior from the top down”. He also emphasized that it was crucial to the
operation of DPAs that the SFO did not simply accept the version of facts
presented by the self-reporting company, but launched its own criminal
investigation into the matter. It was Green’s view that this investigation “usually uncovers further conduct than what
was included in the report”.

When asked what steps the SFO had taken to encourage
self-reporting by companies, Green explained that he made weekly public
appearances before various audiences, including non-governmental organisations,
City law firms and academics, in order to encourage cooperation with the SFO.
In his view, companies are now aware that if they cooperate with the SFO and
self-report, they may have the option of a DPA available to them, provided that
the cooperation is “open and genuine”.

Use of artificial
intelligence

Green referred to the Rolls-Royce investigation, in which
the SFO agreed with the company to use artificial intelligence in the
disclosure process. This technology, Green explained, was developed with IT
partners to allow the SFO “to sift
through [documents] at a tenth of the time that it would normally take”. He
suggested that this technology might be useful to criminal courts in the
future, particularly to ensure that criminal prosecutors are properly
discharging their duties under the Criminal Procedures and Investigations Act
1996.

Potential impact of
Brexit

Green identified a variety of issues arising out of Brexit,
including future use of European arrest warrants, EUROPOL, the Joint
Investigations Teams mechanism (JITs), Mutual Legal Assistance and the European
Investigation Order and mutual recognition of confiscation and restraint
orders. He noted that “all are important
to varying degrees” to the SFO, and warned that if any of these mechanisms
did not continue to exist in some form post-Brexit, “we will have to find an alternative”.

Principal
achievements as Director

When asked what he considered to be his primary achievements
during his six years in the role of Director, he referred to a conviction rate
of more than 70%, with sixty-six out of ninety-four defendants convicted since
2012. Green also mentioned the five convictions with respect to the LIBOR
matter, and four DPAs, which have brought the Treasury approximately 650
million pounds.

Without doubt, Green will leave a very different agency than
the one he joined six years ago. However, with many significant charging decisions still outstanding,
concerns about expert testimony on LIBOR and navigation of the relationship
with the new NECC to consider, the new director will have plenty of opportunities
to make their own mark.

With thanks to Trainee
Solicitor, Stephanie Forrest, for her assistance with this article.

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